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해외주재 영사작성 진술기재서면의 성질과 증거능력 KCI 등재
Admissibility of Out of Court Statements Recorded by Consul
Recently, many people live or travel abroad by various reasons. In this global era, we cannot only require the witness to come to homeland for testifying in court. It is necessary to provide a new method to take a reliable evidence which can solve the case with the witness staying abroad.
In this case, the Prosecutor's Office try to give a new method by requesting the Consul in Japan to hear the witness and record the statements. According to the Vienna Convention on Consular Relations, Consul can hear the people of the Consul's nation. German Consular Relations Law provides that the admissibility of out of court statements recorded by Consul is regulated according to the institution which makes the request. Therefore, if the request comes from court, the statements recorded by the Consul according to the request are treated as statements recorded by Judge.
From this point of view, the Prosecutor's Office insisted that the out of court statements recorded by Consul in Japanese be treated as the out of court statements recorded by Judge in deciding the guarantee of trustworthiness. But the Court construed that the statements recorded by Consul as the statements recorded by private person. Worse than this, the Court denies the guarantee of trustworthiness as the condition for the admissibility for the evidence.
But this guarantee of trustworthiness as a condition for admissibility is relatively lower level of reliability than the reliability for the selection from the admissible evidences for trusting the facts asserted. The selection from the admissible evidences is for the fact finder, for example, trial jury. not for the leader of the procedure. But in this case, the Court seems to be unable to distinguish this guarantee of trustworthiness as a condition for admissibility from the issue of selection from the admissible evidences for trusting the facts asserted. So the Court's decision is inappropriate and the statements recorded by Consul should have been admitted.
〔공소사실〕
〔사실심의 경과〕
〔대법원의 파기〕
〔파기 환송심〕
〔대법원의 판단〕
【평석 】
I. 서
II. 영사작성 진술기재서면의 성질
III. 증거능력과 증명력, 그리고 특신상태
IV. 증거능력 없는 증거의 증거조사 문제
V. 결어
(영문초록)
